[Congressional Record Volume 155, Number 132 (Thursday, September 17, 2009)]
[Senate]
[Page S9548]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ENUMERATED POWERS ACT

  Mr. HATCH. Mr. President, I rise on this Constitution Day to urge 
support for S. 1319, the Enumerated Powers Act. My friend and Judiciary 
Committee colleague from Oklahoma, Senator Coburn, introduced the bill 
in June, and I am proud to be a cosponsor. It would create a mechanism 
by which we can highlight and, if necessary, debate whether we actually 
have the power to do what we do.
  Today, the prevailing view seems to be that Congress can do anything 
we want to do, any time, and in any way. There are always problems to 
solve, good ideas to implement, money to spend, activities to regulate, 
agendas to pursue, or constituencies to please. But those are merely 
the ends and, in our system of government at least, the ends cannot not 
justify the means. Not if we truly value our liberty. Our liberty 
requires that government be limited, that government's actions have 
legal authority, ultimately rooted in the Constitution itself.
  The Constitution, for example, does not grant Congress all 
legislative authority. Article I gives Congress only ``legislative 
powers herein granted.'' Those powers are listed, or enumerated, in 
article I, section 8. The 10th amendment affirms that the Federal 
Government has only powers that are affirmatively delegated to it. 
James Madison explained in The Federalist No. 45 that these powers 
delegated to the Federal Government are ``few and defined.'' Why all 
this emphasis on definition and limitation, especially of the Federal 
Government? Because individual liberty requires limited government.
  In The Federalist No. 51, Madison wrote that ``if men were angels, no 
government would be necessary.'' In other words, some government is 
necessary to have any liberty at all. But Madison went right on to 
write that ``if angels were to govern men, neither external nor 
internal controls on government would be necessary.'' In other words, 
unlimited government makes liberty impossible. The truth is that men 
are not angels and angels do not govern men. Acknowledging that truth, 
America's Founders in their genius created a system of limited 
government to maximize ordered liberty.
  I realize that such notions as definition and limitation are not in 
fashion today. Many today think these ideas passe, antiquated, or--and 
this is my personal favorite--archaic. Limited government is fine when 
we have no major problems to solve, when there are no big crises 
looming large. But today we face the worst economic crisis since the 
Great Depression and many Americans want government to be robust and 
full-throttled. We want government to come to the rescue, to set things 
right, to make everything OK. I realize that today saying no is not 
popular, whether for individuals or for the government.
  So we have to make the same basic, fundamental choice that America's 
Founders did. How much do we prize liberty? The laws of human nature 
and, therefore, of government have not changed. Men have not become 
angels and angels do not govern men. That condition will never exist. 
Ordered liberty will always require limited government, and so we must 
repeatedly ask whether, and how much, we prize liberty.
  This bill embodies these principles by requiring that each of 
Congress state its constitutional authority. In other words, each act 
of Congress must state the very condition that indicates it is 
consistent with limited government. Congress has no authority to act, 
Congress has no authority to exist at all, unless that authority is 
derived from the Constitution. It is no less important than that. So 
this bill would require that each act of Congress state the one 
condition that is necessary for that act of Congress to be legitimate--
authority derived from the Constitution.
  That statement alone would be important but purely symbolic. 
Virtually everyone could ignore it. So this bill would create a 
mechanism for challenging and even debating whether an act of Congress 
is indeed authorized by the Constitution. It does not require such a 
debate for every act of Congress but provides for a point of order that 
can result in such a debate. That debate would focus everyone's 
attention on the absolutely necessary connection between Congress' 
actions and the Constitution and, ultimately, on the Constitution 
itself.
  In the landmark case of Marbury v. Madison, Chief Justice John 
Marshall wrote that ``[t]he powers of the legislature are defined, and 
limited; and that those limits may not be mistaken, or forgotten, the 
constitution is written.'' A written Constitution that delegates 
enumerated powers to Congress is central to limited government and, 
therefore, central to our liberty. If we prize liberty, we must prize 
limitations on government. Chief Justice Marshall later wrote in 
McCulloch v. Maryland that ``this government is acknowledged by all to 
be one of enumerated powers. The principle that it can exercise only 
the powers granted to it . . . is now universally admitted.''
  That was then. How about today? Do we still believe that ordered 
liberty requires limited government? Do we still believe that Congress 
may only do what the Constitution authorizes us to do? Or do we believe 
that Congress needs no more than a good idea powered by a good 
intention? Are the principles embraced by Madison, by Marshall, still 
universally admitted today? If so, then this bill is an important way 
to prove it. On this Constitution Day, I urge my colleagues once again 
to embrace those principles of limited government and to demonstrate it 
by supporting this bill. Policy ideas and political positions shape our 
legislative activity, the Constitution should do so as well. I applaud 
my colleague from Oklahoma, Senator Coburn, for introducing this bill 
and offering this opportunity to raise these principles closer to the 
position of importance they deserve.

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